The present slides relate to the concept of Hiba under Islamic law. Useful for Law students and Professionals.

1. CONCEPT OF HIBA
-SHIVANI SHARM
-ASSISTANT PROFESSOR
-SARDAR PATEL SUBHARTI
INSTITUTE OF LAW

2. WHAT IS GIFT?
 Gift is a transfer of property where interest is
transferred from one living person to another, without
any consideration. It is a gratuitous and inter vivos in
nature.
 This is the general definition that is accepted by all
the religions, including Muslim law. As per the Muslim
Law, a gift is called as Hiba.
Under English laws, right in property is classified by a
division on the basis of immoveable and moveable
(real and personal) property.
Under Hindu Law, a gift is regarded as the

3. CONCEPT OF HIBA
 Under Muslim Law, the concept of Gift developed much
during the period of 610 AD to 650 AD.
 In general, Muslim law draws no distinction between
real and personal property
 What Muslim law does recognize and insist upon, is the
distinction between the corpus of the property itself
(called as Ayn) and the usufruct in the property (as
Manafi).
 Over the corpus of property, the law recognizes only
absolute dominion, heritable and unrestricted in point of
time.
In English law a person having interest in the
immoveable property for limited periods of time is said to

4. CONT..
On the other hand, in Muslim law, a person can be said to be
an “owner” only if he has full and absolute ownership.
If the use or enjoyment of property is granted to a person for
life or another limited period such person cannot be said to be
an “owner” during that period.
The English law thus recognizes ownership of the land limited
in duration while Muslim law admits only ownership unlimited
in duration but recognizes interests of limited duration in the
use of the property.
This basically differentiates Muslim Law’s concept of property
and gift from that of English Law.

5. CONT..
 Conception of the term ‘gift’ as used in the Transfer
of Property Act, 1882 is somewhat different from the
practice under the Muslim Law.
Under the Muslim Law, a gift is a transfer of property
or right by one person to another in accordance with the
provisions provided under Muslim law.
 Hiba (Tamlik al ain), is an immediate and
unconditional transfer of the ownership of some
property or of some right, without any consideration or
with some return (ewaz); and the term ‘hiba’ and ‘gift’
are often indiscriminately used but the term hiba is only

6. CONT..
The other types of gifts include Ariya (Tamlik al
manafe), where the only usufruct is transferred and
Sadqah where the gift is made by the Muslim with
the object of acquiring religious merit.
The Hanafi lawyers define hiba as ‘an act of bounty
by which a right of property is conferred in
something specific without an exchange’.
The Shias hold that ‘a hiba is an obligation by
which property in a specific object is transferred
immediately and unconditionally without any
exchange and free from any pious or religious
purpose on the part of the donor’.

7. REQUISITES OF A GIFT
PARTIES TO THE GIFT
SUBJECT OF GIFT
EXTENT
FORMALITIES OR MODE OF GIFT

8. 1. PARTIES
PARTIES
DONOR DONEE
• The age of
majority
• Sound mind
• Free from coercion
• Free from undue
influence
• Must be the owner
• May be made to
juristic person
• Sex, creed, religion no
bar
• In case of minor or
lunatic- to the
guardian
• Gift to unborn is void

9. 2. SUBJECT OF GIFT
 Anything over which a dominion, or right of property may be
exercised (including right of equity of redemption)
Which can be reduced to possession (includes incorporeal property
and actionable claims)
Which exists as either scientific entity or enforceable right
Within the meaning of word ‘Mal’/ ‘Ayn’
Which is in existence right now- No future Gifts
Gift
Hiba- Gift of
Corpus (Mal/Ayn)
Ariyat- Gift of
usufructs (Manafi)
Sadqah-
Religious gift

10. 3. EXTENT OF DONOR’S RIGHT
 Donor’s power to gift his property is
unrestricted.
 he may not only give his whole property but also
any portion he likes irrespective of the fact that the
disposition of property will adversely affect on the
inheritant's right to inherit.
Exception: (during Marzulmaut)
1. He cannot gift more than 1/3 of his whole
property in will

11. 4. FORMALITIES
Declaration
Ijab
Must be
clear and
Acceptance
Qubo
ol
Delivery
Kabza
Real test is
to see
whether
donor or

12. ESSENTIALS OF HIBA
1. DECLARATION BY DONOR:
There must be a clear and unambiguous intention of the donor
to make a gift.
A declaration is a statement which signifies the intention of the
transferor that he intends to make a gift.
 declaration can be oral or written. (Ilahi Samsuddin v. Jaitunbi Maqbul)
In Maimuna Bibi v. Rasool Mian, it was held that while the oral gift is permissible
under Muslim law, to constitute a valid gift it is necessary that donor should divest
himself completely of all ownership and dominion over the subject of the gift.
The donor may declare the gift of any kind of property either
orally or by written means.

13. CONT..
2. ACCEPTANCE BY DONEE:
A gift is void if the donee has not given his acceptance.
The legal guardian may accept on behalf of a minor.
Donee can be a person from any religious background.
Hiba in favor of a minor or a female is also valid.
A child in the mother’s womb is a competent done provided it is born alive
within 6 months from the date of declaration.
A juristic person is also capable of being a donee and a gift can be made in
their favor too.
On behalf of a minor or an insane person, any guardian as mentioned under
the provisions of Muslim law can accept that gift.

14. CONT..
3. DELIVERY OF PROPERTY:
In Muslim law, the term possession means only such
possession as the nature of the subject is capable of.
Thus, the real test of the delivery of possession is to see
who – whether the donor or the donee – reap the benefits
of the property.
If the donor is reaping the benefit then the delivery is not
done and the gift is invalid.
The mode of delivery of possession depends completely
upon the nature of the property.

15. EXCEPTIONS TO DELIVERY
1. Gift by father to minor/lunatic son/daughter or by guardian
2. When donor and done reside in the same house which is to be
gifted
3. Gift by husband/wife
4. Gift by one co-sharer to another
5. Part Delivery
6. Zamindari Villages
7. Subject matters
8. Subject matter in the occupation of tenant
9. Incorporeal Property
10. Where done is already in possession

16. VOID GIFTS
1. Gift to unborn
2. Gift in future
3. Contingent Gift
4. Gift with a Condition
5. Gift of ‘Mushaa’ is irregular but can
be validated once separated

17. REVOCATION
 The donor has unrestricted right to revoke the gift before the delivery is complete
 Even after the delivery the donor can revoke either by consent of the donor or by the
order of court (Mahbob v Abdul, 1964)
The following gifts are absolutely irrevocable:
1. When donor is dead
2. When done is dead
3. When done is consanguine to donor
4. When the donor and done are in marital relation
5. When the subject of gift is transferred
6. When the subject of gift is lost, destroyed
7. Where subject of gift has increased its value
8. When gift is a sadqaah
9. When anything is accepted in return

18. GIFT FOR CONSIDERATION (IN
REALITY A SALE)
Hiba-bil-iwaz
Exchange of two reciprocal gifts
Actual payment of consideration
Bona fide intention on part of donor
No express agreement for a return
i.e. the return is voluntary
Delivery of possession is not
necessary
Irrevocable from the moment of its
making
It is like contract of sale
Hiba-ba-shartul-iwaz
Transfer of ownership for
consideration
With express condition for return
Delivery of possession is
necessary
Consideration is post poned
When consideration is done it
assumes the character of sale
Irrevocable on payment of iwaz